Daily Archives: August 30, 2013

Admit mistake, people will forgive: Sri Sri tweet seems aimed at Asaram Bapu

Admit mistake, people will forgive: Sri Sri tweet seems aimed at Asaram Bapu

Agencies | Updated: August 30, 2013 13:28 IST

Asaram Bapu snaps at reporters in Bhopal

New Delhi: Asaram Bapu, whose deadline to meet with the police in Jodhpur expires today, will miss his appointment because he is unwell, his son said today. The 72-year-old spiritual leader, who is accused of sexual assaulting a schoolgirl, remains in Madhya Pradesh at his ashram in Bhopal, one of nearly 400 around the world.

The guru’s supporters say he needs to stay in Madhya Pradesh because his relative there has died. Yesterday, the self-styled "godman" lost his temper with reporters and said,"I’m ready to go to prison, that is also a kind of heaven for me."

For all the bluster, the guru’s actions have suggested a determined intent to avoid interrogation. When a team of the Rajasthan police arrived in Madhya Pradesh earlier this week to serve him summons for his interrogation, he kept them waiting for seven hours; his assistants said he was meditating and could not be disturbed.

"If you’re a public figure & have made a mistake,you must publicly admit it.People have bigger hearts than you think.They’ll forgive & forget," tweeted the massively-popular guru Sri Sri Ravishankar this morning in an apparent reference to the Asaram case. He also posted, "When men with high caliber & integrity make a mistake, they would punish themselves much more severely than the laws."

Asaram Bapu has said the allegations of sexual assault are a political conspiracy crafted by Congress leaders Sonia and Rahul Gandhi. His son has described the teen complainant as mentally ill.

In Madhya Pradesh, where he has spent most of this week, a spray of senior leaders of the ruling BJP have spoken in his support.

On August 15, in Jodhpur, Asaram Bapu allegedly told the 16-year-old’s parents that he needed to spend time with her after being told of concerns she was possessed by evil spirits, the police said.

"He asked her parents to recite some religious Mantras at the entrance gate and took the girl inside his room where he allegedly exploited the girl," senior police official Ajay Lamba said to news agency AFP.

http://www.ndtv.com/article/india/admit-mistake-people-will-forgive-sri-sri-tweet-seems-aimed-at-asaram-bapu-412183

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

If women feel unsafe, shouldn’t call ourselves mard: Narendra Modi; “Modi Saheb what abt men feeling unsafe” ?

If women feel unsafe, shouldn’t call ourselves mard: Narendra Modi tells men in India

Friday, Aug 30, 2013, 21:02 IST | Place: Ahmedabad | Agency: PTI

Narendra Modi Narendra Modi – DNA

Saying that protection of "mothers and sisters" was a big issue before the Indian society, Gujarat Chief Minister today said here that if women were feeling insecure, the Indian men had no right to call themselves "mard" (manly).

"In the country of Sita and Savitris….protection of mothers and daughters is a big question for the Indian society," Modi said at a rally in the newly-created Chota Udepur district.

"I don’t want to make a political comment. But I want to ask men why our sisters are unable to lead a peaceful life despite our presence…. (How is it)that our sisters can’t stay alone at home…" Modi said, speaking at the function where he was felicitated for creation of the new district.

"If this is so, we have no right to call ourselves men. We have no right to call ourselves `mard’. We must die of shame," Modi said.

The BJP campaign committee chairman however did not refer to the recent incidents such as the Mumbai gangrape and allegations of sexual assault against controversial godman Asaram Bapu.

But he derided those who blame women for such incidents. "Some men with pervert brains blame women for such acts. It is no fault of the woman….The fault lies in the pervert minds of men. And, society has to fight against such pervert mindset," Modi said.

"Exploitation of women and daughters is a blot on the society, which it must fight. Society must get rid of this blot. We must assume a collective responsibility to get rid of this blot," Modi said.

He further said that "this country was never like this. These pervert mindsets are not what India is associated with".

Hitting out at the UPA government on this occasion, Modi said that unlike those who had been making false promises for the last 60 years, his government kept its promises.

On the creation of the new district, which was carved out of the Vadodara district, Modi said, "The entire state apparatus is coming here to serve you. The poor and the marginalised will gain immensely from this." Inviting the local farmers to attend the next month’s Vibrant Gujarat Global Agriculture Fair, Modi said latest discoveries, tools and best practices in the agriculture will be on display at the fair.

"Farmers have to travel to Israel for such a fair, but the Gujarat Government decided to hold it in Gujarat so that the farmers need not travel great distances." Chota Udepur district was among the seven districts created on August 15 this year. It comprises tehsils of Chota Udepur, Sankheda, Naswadi, Kawant and Jetpur Pavi.

http://www.dnaindia.com/india/1882146/report-if-women-feel-unsafe-shouldn-t-call-ourselves-mard-narendra-modi-tells-men-in-india

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Prosecute Asst comm. of police for contempt of court. NOT actng, investgating wife &her attacks !! MADRAS HC

Prosecute Asst comm. of police for contempt of court. NOT actng, investgating wife &her attacks !! MADRAS HC

NOTES
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Husband says he is attacked by first (ex) wife and her son and some goonda elements
Husband files police complaints
Police NOT acting on complaint
husband gets and order from court, instructing policec to act and complete investigation
police further delay the case
husband shows photogrphs showing very senior police officers attending birthday party etc @ accused’s place
Assistant Commissioner of police censured by court !!
Assistant Commissioner of police’s apology at last moment NOT accepted

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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MADRAS HIGH COURT

M.Muruganandham vs Narasimhavarman on 7 July, 2011

DATED:07.07.2011

CORAM: THE HON’BLE MR.JUSTICE T.MATHIVANAN

Cont.P.No.720 of 2011

in

Crl.O.P.No.26138 of 2010

M.Muruganandham …. Petitioner

Vs.

Narasimhavarman
The Assistant Commissioner of Police
Adyar Range, Chennai-20 ….. Respondent

Prayer : This petition filed under Section 11 of the Contempt of Courts Act, to punish the respondent for not obeying the Order of this Court dated 01.12.2010 and made in Crl.O.P.No.26138 of 2010.

For Petitioner : Mr.K.Sampath Kumar

For Respondent : Ms.M.F.Shabana

G.A.(Crl.Side)

O R D E R

This petition is filed by the petitioner under Section 11 of the Contempt of Courts Act, to punish the respondent for not obeying the Order of this Court dated 01.12.2010 and made in Crl.O.P.No.26138 of 2010.

2. The excerpt of the facts, which is absolutely necessary for the disposal of this petition is detailed as under:

2.1. The petitioner had filed a petition in Crl.O.P.No.26138 of 2010 under Section 482 of the Code of Criminal Procedure, seeking a direction to the Commissioner of the Police, Egmore, Chennai to transfer the investigation of the case in Crime No.324 of 2010 from the file of the Inspector of Police, J2 Adyar Police Station, Chennai to any other fair and competent investigation officer or agency. 2.2. In the above said petition, the petitioner had alleged that a crack was developed in his marital relationship with his first wife Megala as she was trying to do away with his life by poisoning him. He had also alleged that she was trying to attack him with dangerous weapon, with the aide of hooligans. 2.3. On account of this reason, he had obtained a customary divorce from her, after paying the compensation and maintenance as a whole by executing a moochalika before the Panchayathars and family elders. Thereafter, she has been living separately in Chidambaram along with her three children. 2.4. The petitioner had also alleged that on 21.02.2010, his elder son one Gopilingam came to his office in Adyar with rowdy elements and put him under threat and subsequently he had taken away his Toyota Innova Car bearing registration No.TN07 BB4060 (Silver colour) to Chidambaram. Hence, the petitioner had lodged a complaint before the Inspector of Police (L&O), J2 Adyar Police Station, Chennai, on 24.05.2010 and based on his complaint a case in Crime No.324 of 2010, under Sections 428, 379 and 506(ii) I.P.C., was registered on 26.05.2010. 2.5. He had also stated that he had approached the Inspector of Police, attached to J2 Adyar Police Station to seize the Toyota Innova Car from his first wife Megala. But, the above said Inspector of Police, had not taken preliminary steps to seize the car as he was having hand in glow with the petitioner’s first wife. Even inspite of his representation either in person or through post, neither the Commissioner of Police, Egmore, Chennai, nor the Inspector of Police, attached to J2 Adyar Police Station had taken any effective steps to investigate the matter. Hence, he had chosen to knock at the door of this court by filing a petition in Crl.O.P.No.26138 of 2010 to transfer the investigation pertaining to the case in Crime No.324 of 2010 from the file of the Inspector of Police, J2 Adyar Police Station to any other competent investigation officer or agency. 2.6. After hearing both sides, this Court has passed an Order on 01.12.2010 directing the Commissioner of Police, Egmore, Chennai to depute the Assistant Commissioner of Police, Adyar Police Station, who is the respondent/contemnor herein to take up the case in Crime No.324 of 2010 for investigation. The Commissioner of Police, Egmore, Chennai was also directed to transfer the case in Crime No.324 of 2010 from the file of the Inspector of Police, Adyar Chennai to the file of the Assistant Commissioner of Police, Adyar, Chennai and the Assistant Commissioner of Police, Adyar Police Station, the contemnor herein, was also directed to conduct the investigation in an efficacious and impartial manner and complete the same within a stipulated period of three weeks and if it seems necessary to seize the vehicle.

3. In this regard, the learned counsel for the petitioner would submit that soon after passing of the Order on 01.12.2010, the petitioner had communicated the same to the respondent/contemnor on 07.01.2011. Even inspite of the receipt of a copy of the Order dated 01.12.2010, the contemnor did not bother to take up any action against the accused persons. He would submit further that under the influence of one Mr.Mahendran, presently Additional Director General of Police, Vigilance and Anti-Corruption Department, the respondent herein was very reluctant in complying with the Order of this Court. He would submit further that the vehicle was actually seized by the contemnor party and it was driven from the place of seizure to the distance of 100 Kms. However, on the clout of the above said Mahendran, the vehicle was taken back to Chidambaram and handed over to Megala, who is the first wife of the petitioner.

4. The learned counsel for the petitioner would submit further that even after the issuance of contempt notice from this Court, the respondent, without taking any effective steps to investigate the matter, had the audacity to inform this Court that he had closed the complaint as mistake of fact only on the instruction given by the said Mahendran.

5. The learned counsel for the petitioner has also added that the respondent/contemnor had called the second wife of the petitioner Dr.Sushmitha Priya over phone and threatened her to ask her husband to withdraw the contempt petition filed against him, otherwise her husband, who is the petitioner herein would face the consequences. The very fact has been incorporated in the better affidavit filed by the petitioner.

6. When this contempt petition came up for hearing on 16.06.2011, the learned counsel for the petitioner had represented that after service of notice to the contemnor, he himself had called the petitioner over phone and threatened with dire consequence. The learned Government Advocate (Criminal Side) had submitted that he would instruct the contemnor to file an affidavit in respect of the steps so far taken by him in obedience to the order of this Court. On hearing the learned counsel for the petitioner as well as the learned Government Advocate (Criminal Side), the respondent/contemnor was directed to file an affidavit explaining the reasons for not complying with the order of this Court within the stipulated time as directed. The petitioner was also directed to file a better affidavit.

7. The respondent/contemnor has filed his affidavit and thereby at the first instance he has tendered his unconditional apology for any wrong doing on his part and he has also submitted that there was neither wilful nor deliberate intention to disobey the Order of this Court.

8. Based on the above, the learned Public Prosecutor has submitted that the complaint lodged by the petitioner was registered on 26.05.2010 in Crime No.324 of 2010 under Sections 428, 379 and 506(ii) I.P.C. on the file of the J2 Adyar Police Station by one Madasamy, Sub-Inspector of Police and thereafter the investigation was taken up by one Selvam, Inspector of Police, attached to J2 Police Station, Adyar.

9. The learned Public Prosecutor has also submitted that the Inspector of Police during the course of his investigation had examined certain witnesses and understood that the petitioner had married one Megala in the year 1986 and during their wedlock she delivered three children and after 17 years of their marriage, there arisen a problem and thereafter the petitioner had filed a petition in O.P.No.4143 of 2009 for the relief of divorce, before the Family Court.

10. The learned Public Prosecutor would submit that the investigating officer was also put understand that during the pendency of the divorce petition, the petitioner got married to one Dr.Sushmitha Priya sometime in the year 2006 and their marriage was also registered and that the petitioner is also having a child through her. He has also submitted that the petitioner has been living with his second wife at Kancheepuram, where he is having his own property.

11. The learned Public Prosecutor has also maintianed that the petitioner has till date parted with nearly one crore rupees, 250 soverigns of jewels and two cars to the first wife and he has also developed some family problem with his first wife and his son Gobilingam regarding the share of the property, which were earned by him.

12. The learned Public Prosecutor has also adverted to that the petitioner did not intend to give any money or property to the first wife and her children. After the completion of the investigation, the Inspector of Police, attached to J2 Adyar Police Station had filed a final report on 30.06.2010 before the learned IX Metropolitan Magistrate, Saidapet, treating the case as mistake of fact.

13. The learned Public Prosecutor has also continued that the petitioner, who is the complainant had refused to receive the RC notice and therefore as required by law, after following due procedure, the same was stuck outside the house and the signatures of his neighbours were obtained. Further, the learned Public Prosecutor has also added that in pursuant to the direction of this Court dated 01.12.2010 and made in Crl.O.P.No.26138 of 2010, the respondent/contemnor had received the case diary and taken up further investigation. He then visited the place of occurrence and verified the case diary and he had also examined some of the witnesses.

14. The learned Public Prosecutor has argued that as per the allegations levelled in the complaint by the petitioner, his Innova Car was taken away by his wife Megala and son Gobilingam and five others on 21.02.2010 at 01.30 hours without his knowledge. When the respondent had examined the witnesses, who were present near the alleged place of occurrence, they did not corroborate the complaint lodged by the petitioner and on detailed investigation it was revealed that there was no such occurrence on the particular date, time and place ie.on 21.02.2010 at midnight 01.30 hours.

15. The learned Public Prosecutor while advancing his arguments has also drawn the attention of this Court to the averments of the petition filed by the petitioner before the Family Court in which the petitioner had admitted that he himself had handed over the said Innova Car to his wife Megala for the use of his children. He therefore would submit that the candid admission made by the petitioner in his petition before the Family Court is entirely contrary to the averments of the complaint and therefore the section of law mentioned in the first information report under Section 379 I.P.C.is not made applicable.

16. The learned Public Prosecutor has also canvassed that as per the contention of the petitioner, the occurrence was taken place on 21.02.2010 at midnight 01.30 hours. But, he had chosen to file a complaint immediately and he had filed it only on 24.05.2010. In this connection, the learned Government Advocate (Criminal Side) would submit that there was an abnormal delay ie.three months in lodging the complaint from the date of occurrence and after the completion of the investigation, the respondent had also filed a negative investigation report before the learned IX Metropolitan Magistrate Court, Saidapet on 23.05.2011 after referring the case as Mistake of Fact on the ground that there was no such occurrence took place during the date and time as stated by the petitioner.

17. The respondent/contemnor has also filed an additional affidavit on 30.06.2011, in which he has stated that the Order of this Court was received by him only on 22.12.2010 and on the next day he had directed the Inspector of Police, J2 Adyar Police Station to forward the CD file pertaining to the case in Crime No.324 of 2010 to his file. The learned counsel has also stated that due to various unforeseen programmes and schedules his subordinate, namely the Inspector of Police and himself were not able to focus attention on the day to day investigation. The respondent has also stated several reasons for his failure in compliance of the order of this Court, but those reasons are not convincing.

18. Based on the additional affidavit filed by the respondent/contemnor, the learned Public Prosecutor has submitted that the petitioner wanted to make use the Police against the first wife by giving a false complaint to recover his Innova Car from his first wife, which was in fact given by him to his second wife and hence no prima facie case is made out to seize the vehicle, and for this reason, the respondent happened to file a negative investigation report before the learned IX Metropolitan Magistrate on 23.05.2011 after referring the case as Mistake of Fact. Further, the learned Public Prosecutor would submit that the respondent as well as his subordinates had conducted an enquiry in a fair, free and impartial manner in accordance with the law and all the mandatory provisions were strictly followed during the course of his investigation. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

19. In so far as this contempt petition is concerned this Court is of view that the submissions made by the learned Government Advocate (Criminal Side) are extraneous.

20. As discussed in para No.2.6, of this order that on 01.12.2010 this Court, while passing the order in Crl.O.P.No.2613 of 2010 has given the following directions;

(1) The Commissioner of Police, Egmore, Chennai was directed to transfer the case in Crime No.324 of 2010 from the file of the Inspector of Police, J-2 Adyar Police Station to the file of the Assistant Commissioner of Police, Adyar (the contemnor herein).

(2) The Assistant Commissioner of Police, Adyar was also directed to conduct the investigation in an efficacious and impartial manner and complete the same within a period of three weeks and if it seems necessary, to seize the vehicle.

21. It is seen from paragraph No.9 of the affidavit filed by the petitioner that he had met the contemnor on 07.01.2011 and handed over the xerox copy of the order of this Court and explained the facts and circumstances under which the petition was filed. It is also seen from the same paragraph, that a legal notice dated 09.03.2011 was said to have been issued to the contemnor calling upon him to explain as to why he was unable to proceed with the investigation and also to explain as to why the vehicle was not seized and why the investigation was not completed within the stipulated period of three weeks as per the order of this Court dated 01.12.2010 and made in Crl.O.P.No.2613 of 2010. It is also seen that the notice was received by the contemnor on 11.03.2011, as seen in the postal acknowledgement. But even in spite of this the contemnor had failed to act in accordance with the direction of this Court.

22. In his affidavit at paragraph No.5, he has stated that as per the direction of this Court, he had received the case diary and took up further investigation and he had also visited the place of occurrence, verified the case diary, and examined some of the witnesses as detailed therein. From the averments of the affidavit filed by the petitioner as well as the respondent/contemnor, this Court is able to see that the respondent is well aware of the order of this Court dated 01.12.2010.

23. That on 21.06.2011, this Court in order to verify the correctness of the averments of the affidavit filed by the respondent/contemnor has directed the Registry of this Court to call for the entire records relating to the case in Crime No.324 of 2010 from the file of the Learned IX Metropolitan Magistrate, Saidapet, Chennai. Accordingly the records were received by this Court. On verification of the records, this Court is able to find that the complainant has been dated as 24.05.2010. However, it seems to have been registered on 26.05.2010 at 02.00pm., on the file of J-2, Adyar Police Station in Crime No.324 of 2010 under Section 428, 279, 502(2) of IPC.

25. The FIR is found to have been reached the Metropolitan Court on 25.05.2010. It is also found that the first referred charge sheet has been dated as 30.06.2010. But it actually appears to have been filed before the Learned IX Metropolitan Magistrate, Saidapet, Chennai on 21.06.2011 only. The counter foil of the notice of the referred charge sheet is also found to have been produced before the above said Court only on 21.06.2011, though it is dated back to 30.06.2010. The other records viz., the statements of the witnesses have also been sent along with the referred charge sheet only on 21.06.2011, though they are dated back to 26.05.2010.

26. The petition in Crl.O.P.No.26138 of 2010 is found to have been filed by the petitioner under Section 482 Cr.P.C. before this Court on 03.11.2010. It is also found that the petitioner had enclosed a copy of the representation to the Commissioner of Police along with the above said petition. The representation which is found to have been tagged along with the above said petition has been dated as 26.10.2010. The postal receipt has also been dated as 26.10.2010. It shows that the representation to the Commissioner of Police, Egmore, Chennai has been made as early as on 25.06.2010 to transfer the investigation of the case in Crime No,324 of 2010. But the petition in Crl.O.P.No.26138 of 2010 does not have any reference to show that the petitioner was served with the notice of referred charge sheet and that he had refused to receive the notice of referred charge sheet dated 30.06.2010. If at all the notice of the referred charge sheet dated 30.06.2010, was served on the petitioner, then definitely the petitioner would have stated this fact in his petition. As discussed earlier, though the referred charge sheet is dated as 30.06.2010, it appears to have been filed before the Learned IX Metropolitan Magistrate, Saidapet, Chennai only on 21.06.2011. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

27. Under this circumstance this Court is of considered view that the Inspector of Police attached to J-2 Adyar Police Station has not filed the first referred charge sheet before the Learned IX Metropolitan Magistrate, Saidapet, Chennai on 30.06.2010. If it is so the seal of the Learned IX Metropolitan Magistrate, Saidapet would have been affixed on the records on 30.06.2010 itself. But though the respondent/contemnor was given an opportunity to explain these circumstances, he has misrebly failed to explain this fact satisfactorily before this Court.

28. Secondly, on verification of the records, this Court is able to find that the respondent/contemnor is found to have filed the report on 04.05.2011 with regard to alteration of Section of Law. In his report he has stated that;

.."..The investigating Officer Thiru Selvam, Inspector of Police, J-2, Adyar Police Station investigated the case and filed a final report before the Learned IX Metropolitan Magistrate Court as per the merits and demerits of the case and the case was treated as mistake of fact on 30.06.2010. J-2, Adyar Police Station FRRC’s Notice No.2/1010 in Serial No.0825017 was sent to the complainant. The final report was filed before the IX Metropolitan Magistrate Court, Saidapet, Chennai. As per the directions of the Hon’ble High Court in Crl.O.P.No.26138 of 2010 dated 01.12.2010, the case is reopened for further reinvestigation on 03.05.2011…"..

29. According to the complaint and the statement of the complainant, the Sections 428, 379, 502(2) of IPC was altered to Sections 328, 379, 506(2) of IPC. Though this report has been dated as 04.05.2011, unfortunately, it appears to have reached the IX Metropolitan Magistrate Court only on 21.06.2011.

30. Another report of the respondent/contemnor dated 03.05.2011, is also found to have been tagged along with the records in which it is stated that as per the directions of the Hon’ble High Court of Madras in Crl.O.P.No.26138 of 2010 dated 01.12.2010, the case is reopened for further investigation on 03.05.2011. Though this report is also dated as 03.05.2011, it seems to have been reached the IX Metropolitan Magistrate Court only on 21.06.2011.

31. It is significant to note here that the order of this Court was passed on 01.12.2011 in Crl.O.P.No.26138 of 2010 but as has been seen from the above report the respondent/contemnor had reopened the case for further investigation on 03.05.2011 only after 5 months. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

32. On further verification of the records it is found that from 03.05.2011 to 23.05.2011, certain witnesses were said to have been examined by the respondent/contemnor which includes the petitioner. On the same date i.e., on 23.05.2011, he had filed a final report referring the case as mistake of fact. The counter foil of the referred charge sheet notice dated 23.05.2011 has also been tagged along with the records. But it is surprise to note that all the records i.e., final report, referred charge sheet filed by the Inspector of Police attached to J-2 Adyar Police Station along with the related records and the other referred charge sheet dated 25.05.2011 filed by the respondent/contemnor along with the connected records are found to have reached the Learned IX Metropolitan Magistrate Court only on 21.06.2011.

33. If these facts are true, the averments of the affidavit filed by the respondent/contemnor stating that the Inspector of Police Adyar Police Station had filed the final report referring the case as mistake of fact on 30.06.2010, cannot be true. Further the averments of his affidavit stating that he had filed another final report after referring the case as mistake of fact on 23.05.2011 also may not be correct. If the final reports 1 and 2, were filed before the IX Metropolitan Magistrate Court on 30.06.2010 and 23.05.2011 then the Court seal pertaining to the above referred dates viz., 30.06.2010 and 23.05.2010 would have been affixed. But all the records are found to borne the Court seal pertaining to 21.06.2011.

34. As rightly submitted by the learned counsel for the petitioner, that the respondent/contemnor was aware of the order of this Court dated 01.12.2010 and made in Crl.O.P.No.26138 of 2010. But even after the receipt of a copy of the order of this Court, the respondent/contemnor has not evinced any interest to regard the order of this Court instead it appears that he has deliberately flouted it for the reasons best known to him for which he has miserably failed to offer explanation to the satisfaction of this Court.

35. The Learned Government Advocate (Criminal Side) has fairly admitted that there is delay in complying with the order of this Court. But he would submit that the reason for the delay is beyond the control of the contemnor. On the other hand the learned counsel for the petitioner would submit that when there is a specific order directing the respondent/contemnor to conduct the investigation in an efficacious and impartial manner and to complete the same within the stipulated period of three weeks, the question of reopening the case for further investigation would not arise. In his additional affidavit, the respondent/contemnor has stated that due to various unforeseen programmes and schedules he and his subordinate officials were not able to focus attention on the day today investigation. He has also submitted that from January 2011 onwards several festivals and programmes were organised by the Government and that since he being an Assistant Commissioner of Police, the Commissioner of Police, Chennai city had directed him to prepare schedule to monitor the situations and that on account of these reasons there was a delay in compliance of the order.

36. As adumbrated supra all those reasons assigned by the respondent/contemnor are extraneous and left unsupported. Viewing from any angle the conduct of the respondent/contemnor comes under the amplitude of criminal contempt.

37. It is also pertinent to note here that while advancing his arguments, the learned counsel for the petitioner has produced certain photographs in which the respondent/contemnor is found along with the family members of the petitioner on an eve of a birthday celebration of a kid. In this connection the learned counsel for the petitioner would submit that the respondent/contemnor is having close association with the family members of the petitioner and on that pretext he was very reluctant in giving effect to the direction of this Court.

38. In paragraph No.3 of his affidavit the respondent/contemnor has tendered his unconditional apology.

39. In this connection this Court desires to place on record that apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of cringing coward. This dictum is held by the apex court in Mulkh Raj v. State of Punjab, AIR 1972 SC 1197; 1972 Cr LJ 754.

40. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contriction which is the essence of purging of a contempt. However, a man may have courage of convictions and may stake his all on proving that he is not in contempt and may take the risk. This principle is laid down in Debabrata Bandopadhyay v. State of West Bengal, AIR 1969 SC 189(193): 1969 (1) SCR 304.

41. On coming to instant case on hand the respondent/contemnor was trying to justify his inaction for giving effect to the order of this Court dated 01.12.2010 by saying that there is neither wilful nor deliberate intention in disobeying the order of this court and at the same time he has also tendered unconditional apology saying that .."..however if the Court comes to the conclusion that contempt has been committed by him, I once again submit my unconditional apology before this Court…".. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

42. In this regard this Court would like to place on record that it is well settled and self evident that there cannot be both justification and an apology. The two things are incompatible. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. This proposition has been laid down by the Apex Court in M.Y.Shareef v. Hon’ble Judges of the Nagpur High Court, AIR 1955 SC 19 (24); 1955 (1) SCR 757: 1955 Cr LJ 133.

43. On analysing the related facts and circumstances, this Court is of view that the action of the contemnor is deliberate and wilful as such the unconditional apology tendered by the respondent/contemnor cannot be accepted as it cannot be a .."..mantra..".. to pray exemption in as much as when there is no justification of such.

44. The respondent/contemnor is a responsible officer that too in the cadre of Assistant Commissioner of Police. He is having responsibility towards his department as well as towards the society. The rule of law is the foundation of the democratic society. The judiciary is the guardian of the rule of law. If the orders of the court were disobeyed with impunity by those who owe an obligation to the society to preserve the rule or law, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.

45. As discussed in the foregoing paragraphs, it is established that the conduct of the respondent/contemnor is amounting to criminal contempt of Court. In this connection this Court would say that contempt of court is disobedience to the Court, by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the court’s order, for it acts in disobedience to the authority. The act of disobedience of the respondent/contemnor is calculated to undermine public respect for the superior court and jeopardise the preservation of law and order

46. In so far as the instant case on hand is concerned this Court put faith in the professional honour of the Police machinery of the State and trusted them to carry out an expeditious investigation into the serious complaints of the petitioner. In this connection a question is arisen as to whether that trust was really justified. This Court does not see any reason to accept the explanations offered by the respondent/contemnor and therefore, comes to the conclusion that he is liable to be punished, under Section 12 of Contempt of Courts Act, 1971 as there is wilful and conscious violation of the order of this Court dated 01.12.2010. Since the respondent/contemnor has been officiating as Assistant Commissioner of Police, if any severe punishment either sentencing of imprisonment or imposing of fine, is awarded, then it will affect his future carrier. At the same time this Court must take utmost care to see that the temple of justice does not crack from outside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

47. As rightly decided in Tarak Singh v. Jyoti Basu, (2005) 1 SCC 201: AIR 2005 SC 338 like any other organ of the State the judiciary is also manned by human beings, but the function of judiciary is distinctly different from other organs of the State, in the sense its function is divine. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. While awarding the sentence on the contemnor, the Court does so to uphold the majesty of law.

48. Keeping in view of the official status of the respondent/contemnor and other circumstances, this Court has come to the conclusion that he is liable to be punished under Section 12 of the Contempt of Courts Act as he is found guilty of contempt.

49. In the result the respondent/contemnor is found guilty of contempt and hence, he is awarded with cesure. With the above observation, this contempt petition is disposed of.

07.07.2011

Index : Yes/No

Internet : Yes/No

krk

To

1. Narasimhavarman
The Assistant Commissioner of Police
Adyar Range, Chennai-20

2.The Public Prosecutor,
High Court, Madras 600 104.

T.MATHIVANAN, J.

Krk

Pre-Delivery Order in Cont.P.No.720 of 2011 in

Crl.O.P.No.26138 of 2010

07.07.2011

*****************

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

When U get 1.4 crore MOOLAH & only 28yrs old U CAN’T wait 6 mnths to b divorced!! HC will waive waiting period

When U get 1.4 crore MOOLAH & U R only 28yrs you CAN’T wait 6 months to b divorced!! HC will waive waiting period

Notes
*****************
* couple get married , but very soon differencces crop up
* husband pays 1.4 crore moolah
* husband and wife can’t wait for even 6 months statutory period !!
* they run to HC and get the case quashed

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

C.R. No. 794 of 2009

Date of decision: March 3,2009

Shaveta Garg ..Petitioner
Versus
Rajat Goyal ..Co-petitioner

Coram: Hon’ble Mr.Justice Rakesh Kumar Garg

Present: Mr.Akshay Bhan, Advocate for the Petitioner.

Mr. Sameer Rathore, Advocate for Mr. Sumeet Goel, Advocate for the co-petitioner

***************************

Rakesh Kumar Garg,J.

By way of this revision petition, the petitioner has challenged the order dated 21.1.2009 passed by the District Judge, Chandigarh vide which the application moved by the petitioner for waiving/condoning the statutory period of six months for grant of mutual divorce as fixed under Section 13-B(2) of the Hindu Marriage Act, 1955 (for short the ‘Act’) has been declined. As per the averments made in the petition, the marriage between the parties took place on 4.12.2005 as per Hindu Rites and Ceremonies. Later on due to indifference in thinking and different attitude, the parties could not adjust with each other and started living separately since 27.7.2006. Every sincere effort by the parties to abridge the gap yielded no results and the marriage exists only on papers and the same is factually and emotionally dead for all intents and purposes. The respondent-husband sought divorce by filing a petition under Section 13 of the Act. It has been further averred in the petition that during the pendency of the aforesaid petition owing to the good offices of relations and respectable, parties arrived at a mutual settlement to get the marriage dissolved under Section 13-B of the Act by mutual consent. This conscious decision was taken by the parties of their own free will and volition after thorough deliberations without any undue pressure and coercion from any quarters. The respondent-husband sought amendment in application for correcting the divorce petition into a petition for divorce by mutual consent. Both the parties filed a joint petition under Section 13-B of the Act for dissolution of marriage on 16.12.2008 before the District Judge, Chandigarh. Statements of the parties were recorded on 20.12.2008 wherein they stated that they could not live together due to different temperaments and have been residing separately since 27.7.2006. They also stated that their marriage has broken and they have decided to get it dissolved by way of mutual consent and they are making the statements without any influence or pressure. The parties also moved an application for condonation/ waiving of statutory period of six months as provided under Section 13-B(2) of the Act pleading that they are young and have taken a conscious decision of divorce after thorough deliberations. It was also pleadd that the respondent- husband has undertaken to pay Rs. 1.40 Crores to the petitioner-wife and they are of the age group of 29 years and 28 years and no purpose will be served to keep the matter pending for another six months and it was submitted that since they are of marriageable age, their marriage be dissolved by condoning the statutory period of six months. The District Judge, Chandigarh vide impugned order dated 21.1.2009 dismissed the aforesaid application holding that statutory period of six months cannot be waived in view of the judgment of this Court in Charanjit Singh Mann Versus Neelam Mann AIR 2006 Punjab and Haryana 201. Challenging the impugned order, learned counsel for the petitioner has vehemently argued that the trial Court has failed to consider that both the parties are living separately since 27.7.2006 and are well educated and mature enough to understand what is good for them. Both the parties are of marriageable age and no purpose will be served to adjourn the proceedings for another six months. Learned counsel for the petitioner has further argued that the court below has failed to consider the fact that statutory period of six months has been waived off in various Single Bench as well as Division Bench Judgments passed by this Court and the judgment in Charanjit Singh Mann’s case (supra) has been wrongly relied upon by the court below as the operation of the said judgment has been stayed by the Hon’ble Supreme Court in Special Leave to Appeal(Civil) No. 9346 of 2006 dated 25.1.2007. Learned counsel for the petitioner has also relied upon a Division Bench judgment of this court in the case of Jawan Versus Mewa Singh 2001(3) RCR (Civil) 343 to contend that the moment, operation of judgment is stayed, the ratio of law as laid down by the judgment of the Division Bench cited in Charanjit Singh Mann’s case(supra) became non-est.

The learned counsel also placed reliance upon the judgments of this Court which are as follows:-

(i) Vinod Kumar Versus Kamlesh 2001(4) R.C.R.(Civil) 93,

(ii) Anita Sharma and Harish Kumar Sharma Versus NIL 2006(1) HLR 178.

(iii) Payal Gupta Versus Kunal Gupta 2006(2) HLR 4,

(iv)Sunil Kumar Versus Jyoti 2006(1) HLR 638,

(v) Satinder Kumar Versus Sunita 2006(1) HLR 573,

(vi) Surjit Singh Versus Jagir Kaur alias Harpreet Kaur 2006(1) HLR 120,

(vii) Jaswinder Kaur Versus Suresh Kumar 2006(3) RCR (Civil) 430(D.B.), (viii) Amarjit Kaur Versus Bhupinder Singh 2007(1) HLR 461

(ix) Dr. Arun Gupta Versus Dr. (Mrs.)Rita Gupta 2008(1) Marriage Law Journal 131. and

(x) Vijay Kumar Versus Smt. Surinder Kaur alias Sunita 2008(1) Marriage Law Journal 69.

In the end, earned counsel has argued that the impugned order is liable to be set aside. Learned counsel has further prayed that the revision petition be allowed and the impugned order be set aside and further direction be issued to the trial Court to proceed with the matter after waiving of the statutory period of six months as fixed under Section 13-B(2) of the Act. I have also heard learned counsel for the co-petitioner-husband who has admitted that there was no coercion, intimidation or, undue influence on the parties for getting the divorce. He has also stated that since 27.7.2006, the parties are living separately and the co-petitioner/ husband had filed a petition for divorce under Section 13 of the Hindu Marriage Act for divorce. Since the efforts made by the parties to reconciliation yielded no results, the parties have arrived at a mutual settlement to get the marriage dissolved under Section 13-B of the Act by mutual consent and the co-petitioner/ husband moved an application under Order 6 Rule 17 CPC for converting the petitioner of divorce under Section 13-B of the Act and moved joint petition for divorce by way of mutual consent on 16.12.2008 after taking conscious decision as both of them are very young and there is every possibility of rehabilitation of both the spouses in near future. In the end, learned counsel for the respondent has also prayed for waiving of the statutory period of six months and to dissolve the marriage by way of mutual consent.

The question whether the matrimonial court is competent to waive of the minimum waiting period of six months prescribed in sub section (2) of Section 13-B of the Act came up for consideration before the Division Bench of this Court in the case of Charanjit Singh Mann’s case(supra). The Division Bench after relying upon a judgment of the Hon’ble Supreme Court in Sureshta Devi Versus Om Parkash, AIR 1992 SC 1904 held that the waiting period of six months as provided under Section 13-B(2) is mandatory and cannot be waived of. It is pertinent to mention here that while deciding the aforesaid case, the Hon’ble Division Bench had taken note of various judgments passed by this Court wherein the aforesaid period of six months was condoned. However, all these judgments/orders were ignored by observing that the same were passed on the statements and concessions made by both the parties and the scope or interpretation of Section 13-B(2) of the Act was neither raised nor adjudicated upon. It is also relevant to mention that question before the Hon’ble Apex Court in Sureshta Devi’s case(supra) was whether it is open to one of the parties at any time till the decree of divorce is passed, to withdraw the consent given for divorce by way of mutual consent and while answering this question, the Hon’ble Apex Court observed that the purpose of this waiting period is to give an opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition and held that in a petition for divorce by way of mutual consent under Section 13-B of the Act a spouse can unilaterally withdraw the consent and the consent once given is not irrevocable. Relevant observations of the Hon’bls Supreme Court are as follows:- " From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorize the court to make a decree for divorce. There is a period of waiting from 6 yo 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period, one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap martial ties. They know that they have to take a further step to snap marital ties. Sub-Section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties…if the petition is not withdrawn in the meantime, the Court shall….pass a decree of divorce."What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the inquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an inquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.

Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13- B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

It is also relevant to mention at this stage that in Ashok Hurra Versus Rupta Bipin Zaveri AIR 1997 (SC) 1266, the Hon’ble Supreme Court after noticing Sureshta Devi’s case observed that the judgment in Sureshta Devi’s case would require reconsideration in an appropriate case. The relevant observations are as under:-

" We are of opinion that in the light of the fact situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant’s counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi’s case(supra) or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi’s case (supra), certain observations therein seem to be very wide and may require reconsideration in an appropriate case.

Thus the question whether six months waiting period as provided under Section 13-B(2) of the Act can be waived on the concession of both the parties was not before the Hon’ble Supreme Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

It is also important to mention that the Hon’ble Supreme Court has stayed operation of the judgment of the Division Bench in Charanjit Singh Mann’s case vide Special Leave to Appeal(Civil) No. 9346 of 2006 and has observed that in view of Anjana Kishore versus Puneet Kishore 2002(10) SCC 194, the matter requires consideration. The Hon’ble Supreme Court in Anjana Kishore’s case(supra) observed as under:-

"In view of the developments which have taken place during the pendency of proceedings in this Court, we decline to transfer the case from family court at Bandra, Mumbai to the family court at Saharanpur. We, however, direct that as agreed to by learned counsel for the parties, a joint petition shall be filed by the parties before the family court at Bandra, Mumbai for grant of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the joint petition. An application for curtailment of time for grant of divorce shall also be filed along with the joint petition. On such application being moved, the family court may, dispensing with the need of waiting for six months, which is required otherwise by sub-section (2) of section 13-B of Hindu Marriage Act, 1955, pass final order on the petition within such time as it may deem fit.

This direction we are making under Article 142 of Constitution, as looking at the facts and cir circumstances of the case emerging from pleadings of the need of making such a direction to do complete justice in the case. The parties shall present themselves before the learned Presiding Officer, family court at Bandra, Mumbai on 17.9.2001 when the learned Presiding Judge shall take further appropriate steps."

Thus, keeping in view the fact that the operation of the Division Bench judgment in Charanjit Singh Mann’s case (supra) has been stayed by the Hon’ble Supreme Court of India and relying upon the judgment of Division Bench of this Court in Jaswinder Kaur’s case (supra), I allow this petition and set aside the impugned order dated 21.1.2009. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

The District Judge Chandigarh is directed to proceed with the matter after waiving of the statutory period of six months as fixed under Section 13-B(2) of the Act. Keeping in view of the fact and circumstances of the case, the District Judge, Chandigarh is also directed to decide the matter expeditiously.

Both the parties through their counsel are directed to appear before the District Judge, Chandigarh on 9.3.2009. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

Copy of the order be given dasti under the signatures of Bench Secretary.

March 3, 2009

(RAKESH KUMAR GARG)

JUDGE

nk

*****************

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Owning property itself not saddle husband with INT maintenance us24 Liable topay if he has income. DELHI HC !!.

Owning property itself not saddle husband with INT maintenance u.s 24. Liable to pay if he has income. DELHI HC !!.

Quoting the Honourable HC "……….owning property itself will not make the petitioner saddle him with the liability to pay the maintenance under Section 24. The petitioner would be liable to pay if he has income. The word "income" used in this Section 24 of the Act is of widest amplitude. The income may be in cash or kind but it has to be an accrual from the movable or immovable assets. It will definitely not include the immovable or movable property itself. …….."

"…. Section 24 uses the word "income" juxtaposed the words ‘income and property’ used in Section 25 of the Act. ….."

*******************************************************************

Notes
*****************
* husband from very rich family
* husband has many large properties
* husband’s factory has closed down
* husband says he has little or NO income and is borrowiing from his mother for his own expenses
* court does NOT believe him
* husband has also NOT shown proof of wife’s income

* However the court refuses to grant a huge INTERIM maintenance to wife and grants only Rs 12000 pm …still Rs 12000 pm in 2003 !! the logic there being IMMOVABLE PROPERTY ITSELF IS NOT INCOME !!!

"……. Section 24 uses the word "income" juxtaposed the words ‘income and property’ used in Section 25 of the Act. …"

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

Delhi High Court

Shakti Pershad vs Ratna Pershad on 31 January, 2003

Equivalent citations: 2003 IAD Delhi 697, 102 (2003) DLT 756

Author: M A Khan
Bench: M A Khan

JUDGMENT

Mahmood Ali Khan, J.

1. In this civil revision petition filed under Section 115 of the CPC the petitioner Shakti Pershad, who is husband, has assailed the order of an Additional District Judge dated 25.2.2001 whereby he has dismissed the application filed by the petitioner under Section 24 of the Act but has allowed a similar application under Section 24 filed by the respondent wife Ms. Ratna Pershad fixing her pendentelite maintenance at Rs. 12,000/- per month besides awarding Rs. 10,000 as expenses of the proceedings in a divorce proceedings instituted by the respondent wife.

2. Briefly stated the facts are that Ms. Ratna, respondent, has filed a petition for a decree of divorce against the petitioner Shakti Pershad on the ground of cruelty under Clause (ia) of Section 13(1) of the Hindu Marriage Act (the Act). She also filed an application for grant of her pendentilite maintenance and an amount for meeting expenses of the proceeding. In the application she alleged that she does not own any movable or immovable property and has no independent income to support her. She is financially dependent upon her parents. Her jewellery was disposed of from time to time for meeting necessary expenses at the behest of the petitioner husband. The petitioner husband belonged to one of the Delhi’s richest families and was living an affluent lifestyle. He was member of several clubs but he had no money for the respondent wife, who was a mere housewife. She had to sell her jewellery to meet expenses on her bread and butter and expenses of her son. Both she and the petitioner were divorcees. She had a daughter from her first marriage who was living with her while the petitioner had two daughters from his first marriage but both of them were living with their mother. After the marriage with the petitioner she had given birth to a son in 1984 who was living with her and she had to bear expenses of his education also. The son is at present studying in 10th class in Vasant Valley School and both she and the son are dependent upon his father. The petitioner was born in a wealthy family. He had a house in a posh Friends Colony East and he was a member of Gymkhana Club, Noida golf club and some other clubs. He owns ancestral property in Chandni Chowk, Delhi. Some of these properties have been sold by him and he had received huge amount as sale consideration which is in his personal knowledge and he should be directed to disclose it. He owns a two storeyed palatial house built over an area of 1800 square feet bearing No. 45, Friends Colony East. His mother sold an annexe building built on 800 square yards of land for a consideration of over a crore. A part of the land in Friends Colony was also sold to Unitech Builders for building flats and the petitioner has received his share from the huge consideration. She alleged that she was spending about Rs. 2,80,000 on the maintenance and schooling of her son which is roughly about Rs. 27,000 per month. This sum is being borrowed by her from her father. She has to repay about Rs. 1.5 lakhs for the maintenance of her son since he was abandoned by the respondent on 23.3.1999. She is not maintaining good health. Her medical expenses, food and boarding will amount to at least Rs,25,000 monthly on a modest estimate. She tires easily and has to employ at least 2 female servants to nurse and look after her. The petitioner had forced her into litigation and she needed minimum Rs. 50,000 in the first instance to meet in and out of pocket expenses and charges. The court should direct the petitioner to pay Rs. 25,000 per month for meeting the rent of the house for her in Delhi as a temporary measure since her father would then be able to return back to Hyderabad and carry on his consultancy business there as before. She claimed that she had been paid Rs. 60,000 for her and her son’s maintenance and besides the petitioner should also be directed to pay Rs. 25,000 per month as rent of the premises to be taken by her for her and her son’s residence. She also claimed Rs. 50,000 as expenses of the proceedings. Further more she wanted Rs. 1.5 lakhs to be given by the petitioner to enable her to return to her father who had incurred the expenses on her and her son since they started living separately from the petitioner.

3. In the application which the petitioner Shakti Pershad filed it was alleged that after the marriage he had been giving all his attention to the respondent and was spending huge sums of money on her maintenance and treatment. He had provided best medical assistance to her. The respondent wife is a woman of substantial means and has a regular source of income. She is driving a Honda City car, has credit cards, she is maintaining a cellphone and she is living a luxurious and expensive life for which she is not dependent on anybody. The son of the parties is staying with the petitioner and the respondent wife should be directed to pay the expenses to him which she was claiming in her application for the upkeep and the education of the son to him. The petitioner was an old man of 55 years and he is unable now to start a new business to sustain himself and his son. He has only one property which he inherited from his father. It is built on 330 square yards of land in New Friends Colony, East. The said property is mortgaged against a loan which was taken by him from Bank of Punjab. The bank has obtained an order of injunction against the alienation of the said house against him in the recovery proceeding before the Debt Recovery Tribunal. He himself and his son are both financially dependent upon his mother who had inherited some wealth from his father. He himself does not have any income since 1998. The industrial unit set up was closed down because of financial loses. Its machinery was hypothecated in favor of the bank. No money has been paid to the bank against the outstanding loan. Over the years his wealth has depleted, consequently, he is totally dependent on his mother. He does not own any car or vehicle. He does not pay any tax He did not file income tax return. He had been borrowing money from his friends and relatives. He became member of Gymkhana club 30 years back and now he owned a sum of Rs. 6000 to the club which he is not able to pay. Similarly, he was indebted to Noida Golf club and has stopped going to clubs. His residence telephone has also been closed due to non payment of the telephone bill and the outgoing calls have been stopped. He is not in a position to pay the legal expenses. His mother has taken upon herself to bear the educational expenses of his son. His monthly expenditure for running the household which included himself and his son was Rs. 12,000. The monthly tuition fees of the son was Rs. 3000. His son also needed Rs. 2500 per month which includes his private tuition, pocket money, medical expenses, school uniform, stationary books, entertainment and other like expenses. Because of his financial incapability he is forced to borrow this money from his mother and friends. He has to return the money. It is also difficult for him to pursue the legal proceedings. Since the respondent wife is better of, therefore, he has prayed that she should be directed to pay Rs. 12,000 per month as pendentilite maintenance for running the household and Rs. 5500/- per month as interim maintenance for meeting the expenses of his son etc. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

4. The trial court after hearing the parties by the impugned order held that the petitioner husband has failed to bring on record any evidence suggesting that the respondent wife has income and that she owned a car, a cellphone or had a credit card. On the other hand upon consideration of the allegations made in the petition, the written statement and the application and also the material placed on record he held that the petitioner husband had income. He was spending lacs of rupees on providing medical assistance and surgery of the respondent, he was providing Rs. 50,000 as household expenses to the respondent, he was providing all the luxuries to her, he himself was a rich man. He owned property, he came from a very rich and affluent family of Delhi. He had been selling the properties and was meeting all the expenses from which it could be inferred that he had sufficient income. In the totality of the facts and circumstances he rejected the application of the petitioner and allowed that of the respondent wife and fixing the pendentilite maintenance of the respondent wife at Rs. 12,000 and also directed the petitioner to pay Rs. 10,000 to her for meeting the expenses of the proceeding.

5. The petitioner is aggrieved and has filed the present petition.

6. I have heard the counsel for the parties and have gone through the record.

7. Counsel for the petitioner has strenuously canvassed that in the divorce petition the respondent herself had averred that the petitioner was not earning since 1994 and that he was disposing of the property for running the household. It is submitted that the respondent has further admitted in the divorce petition that the petitioner had set up a factory in 1993 borrowing money from the bank of Punjab which was closed down and the bank had filed proceedings for recovery of money before the Debt Recovery Tribunal. She had admitted that she was the guarantor to that loan. She also argued that the petitioner, though member of Gymkhana club became its member 30 years back and now he owed Rs. 6000 to it which he is not able to pay. He has stopped going to Noida golf club because he could not bear the expenses. He does not own a car, cellphone or credit card. He also stated that he does have a dog in his house. But he is now totally dependent upon his mother who had inherited some wealth from his father who died in 1989. Counsel for the petitioner also argued that interim maintenance could be paid to the husband and wife under Section 24 of the Act having regard to the income of both the spouses. It is urged in the instant case that it is the respondent’s own case that the petitioner has no earning at all and that he is disposing of his property to meet the expenses and if it is so the petitioner husband could not be said to have "income" out of which he may be required to pay the pendentilite maintenance to the respondent. Moreover it is argued by her that the maintenance is payable to the wife under Section 24 of the Act only when she does not have independent income to support her. It is contended that the respondent is leading a luxurious life. She owns a Honda City car, a cellphone, credit cards and she is spending lavishly and therefore, her contention that she does not have income is false. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

8. Controverting the above arguments of counsel for the petitioner counsel for the respondent stated that the respondent had no independent income. She is entirely dependent upon her father who is living in a rented flat. It is submitted that the petitioner has not placed on record any evidence or other material to show that his household expenses and the expenses of the child are being born of petitioner’s mother. According to him the respondent is maintaining a palatial house, running the household, maintaining a dog, emjoying membership of clubs etc and he could not have done it with no income accruing to him from any source. It was contended that the petitioner who belonged to one of the richest business family of Delhi owned properties which he was selling. He got money from the sale of land. He also got money when his mother sold annexe house for over a crore of rupees. It is, therefore, canvassed that the petitioner had income and its source was in his special knowledge which he had not disclosed, so the trial court was justified in passing the order of maintenance in favor of the respondent.

9. Section 24 of the Hindu Marriage Act provides establishment of two essential conditions to enable the court to pass an order of pendentilite maintenance and award the expenses of the proceeding in favor of the husband or wife. These are that the husband or wife does not have independent income to support him/her and that the interim maintenance and the expenses of the proceedings are to be fixed having regard to the income of both the spouses. In the divorce petition the respondent wife has indeed alleged that the petitioner husband is not running any business. His factory has closed down. The bank from which loan was taken for the factory had started proceeding for its recovery before the Debt Recovery Tribunal. The money has not been paid. It is further alleged by her that the petitioner had stopped giving her money for meeting the household expenses since 1994. The petitioner, however, in his reply has submitted that he did not have income since 1998. Certain more facts are worth noticing. The petitioner husband belonged to a very rich family of Delhi. He owns ancestral property in Old Delhi and also owned a big house in Friends Colony East. Anyhow owning property itself will not make the petitioner saddle him with the liability to pay the maintenance under Section 24. The petitioner would be liable to pay if he has income. The word "income" used in this Section 24 of the Act is of widest amplitude. The income may be in cash or kind but it has to be an accrual from the movable or immovable assets. It will definitely not include the immovable or movable property itself. For instance the wages, salary, interest or dividend, agricultural produce of a land, the fruits from fruit bearing tree or orchard, the rent from the house etc will be income. Section 24 uses the word "income" juxtaposed the words ‘income and property’ used in Section 25 of the Act. The income and the property or capital assets, as such, are not one and the same thing. A spouse may own huge immovable properties of immense value but if there is no yield or accrual of interest or rent they would not be reckoned for calculating the amount of maintenance. But if the spouse has money in its hand may be by the sale proceeds of any immovable or movable property which he or she is using for meeting the personal expenses or the expenses of the household then that could certainly be taken into account. Shares or bonds may not be included in the term income but what was yielded in the shape of dividend or interest would become income. This view finds support from the judgment of the Calcutta High Court in Gita Chatterjee Vs. Probhat Kumar Chatterjee, and Kerala High Court in Hema Vs. S. Lakshmana Bhat, .
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10. In the backdrop of the above proposition of law now I may proceed to consider as to whether the petitioner and the respondent had income. The trial court had repelled the contention of the petitioner husband that the respondent wife is a earning hand or has some source of her income on which she is allegedly sustaining her luxurious life, her car, credit card or cellphone etc. In fact apart from making a hollow allegation that the respondent wife owned a Honda City car, a cellphone or a credit card he has not been able to bring forth any tangible proof to substantiate his allegation barring that in the year 1998 she had worked in the concern of her father and had earned income for which she had submitted an income tax return. There is no allegation or proof that before that or after that year she had submitted the return. There is no proof that she was maintaining a car or had a cellphone or the credit card which she is using. It is also not denied that her father is living in a rented flat and the respondent is presently staying with him there. It is also not denied that her father was running some consultancy work in Hyderabad before shifting to Delhi and that he was running some business here as well. The oral allegation of the petitioner that the respondent is having source of income to enable her to sustain and support herself, therefore, had no proof. The contention of the petitioner husband was rightly rejected by the trial court.

11. Adverting to the income of the petitioner husband, as stated above, the respondent wife had made allegation in the divorce petition that after the failure of the business in 1994 the petitioner husband was not earning but was sustaining himself by selling the immovable properties. The petitioner husband has himself stated that he belonged to a very rich and affluent family. He had not denied that his family owned large immovable property and houses. It is also not disputed that his father had given him a built up house which he says is standing on a large piece of land in New Friends Colony East. Disposal of the properties by him for meeting the expenses has not been denied. It is also not denied that he was member of Gymkhana club though alleged that he had become its member 30 years back and still owed a sum of Rs. 6000 to the club. He did not deny that he was also member of Noida Golf club. According to him his son has now started residing with him and he was spending Rs. 3000 on his school fees and another sum of Rs. 5500/- on his other expenses. He also says that he was maintaining the household expenses of Rs. 12000 per month by borrowing money from his mother and other friends. He has a telephone. According to the petitioner since 1998 he did not have income and that he was only dependent upon his mother but he did not disclose as to whether he had received his share from the sale of any of the ancestral properties or the sale of the land to Unitech Builders or the sale of the annexe building in New Friends Colony by his mother. He has also not disclosed the names of his friends and relatives from whom he had borrowed the money. Nor did he disclose the amount which his mother is spending upon him. It may also be remembered that the petitioner and his son are living in a separate house and they are not living with the mother. How the petitioner is meeting the household expenses and other expenses and maintenance of his son was also in his special knowledge and he should have disclosed it. When the petitioner has not truthfully come out with all this information the trial court was perfectly justified in making some guess and estimate about the money which he has and that he has some latent source of income which during these hard days are sustaining him, the lifestyle to which he was accustomed or a little less than that. But his living standard is not reflective of any financial strain on him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

12. In terms of Section 24 of the Act the maintenance of the applicant spouse whether he is a husband or a wife is to be fixed on a sum which seems to be reasonable. There is no infirmity in the finding of the learned trial court that the respondent wife does not have independent source of income for her support. Conversely his finding that the petitioner husband had some source of income which he has not disclosed can also not be discarded since it is based on sound principles of law in the facts and circumstances of the case.

13. According to the case of the petitioner he was accustomed to pass a life of luxury. He was paying Rs. 50,000 to the respondent wife for meeting the household expenses, she was also using credit card provided by him and was spending up to Rs. 30,000 per moth. He was spending thousands rather lakhs of rupees on her medical treatment and surgery. The petitioner says that he now does not live the style of his former life but the respondent wife is also entitled to live to the standard of life which the petitioner is now leading. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/

14. Having regard to the above discussion and the facts and circumstances of the case I do not find any jurisdictional error or any material irregularity in the exercise of the jurisdiction by the trial court when it fixed the interim maintenance of the respondent wife at Rs. 12,000 per month and her expenses at Rs. 10,000. The amount of pendentilite interest fixed by the trial court is reasonable. In the totality of the facts and circumstances of the case I do not find any merit in the petition. It is dismissed leaving the parties to bear their own cost.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist